Wis.LIRC UC Decision: Kelly, Deborah - February 25, 2005 - ET 481- School year employe, school year employment - claimant substituted for 4 districts - each to be considered separately to determine if reasonable assurance exists, and if no reasonable assurance with a district, then impact of reasonable assurance from any other district must be considered

The Department of Workforce Development (Department) issued four determinations; one for each of the above employing units, holding that the employee worked as a substitute teacher, in an instructional capacity, for an educational institution during an academic year, and that as of week 22 of 2004, the employee had reasonable assurance of performing such services in the next academic year.

The employee timely appealed all four determinations and an administrative law judge (ALJ) for the Department's Division of Unemployment Insurance conducted a hearing with the employee and each educational institution separately. The ALJ then issued one decision under each hearing number referencing facts from the four hearings. The employee timely petitioned for commission review of the matter, challenging the ALJ's findings that the employee had reasonable assurance. Neither party objected to the ALJ's combining of records.

Following the commission's receipt of the petition, a letter was sent to each party seeking to formally consolidate the matters into one record for decision making purposes. Attached to each letter were copies of all four hearing synopses. No specific objections were received (1 ) and the commission has consolidated the record for decision making.

Based upon the commission's consideration of the petition, the positions of the parties and review of the evidence submitted to the ALJ, the commission makes the following:

The employee filed an unemployment benefit claim in the fall of 2003 and continued filing intermittent claims through the summer of 2004. The employee performed services as a substitute teacher for the Westby Area Schools, the Kickapoo Area School District, the Viroqua Area School District, and the Richland School District. Her benefit claim is based, in part, on the work she performed for these educational institutions during the 2002-2003 academic year. The specifics of the employee's work for each educational institution are set forth below.

The employee began performing services as a substitute teacher for the Westby Area Schools (Westby) in January 2001. In the 2000-2001 academic year, she worked 11.5 days. In the 2001-2002 academic year, she worked 17 days. In the 2002-2003 academic year, she worked 2.5 days. On August 13, 2003, the employee sent a letter to Westby requesting to remain on its substitute list. While her name remained on the substitute list for the 2003-2004 academic year, she was not called for any openings.

With respect to Westby's substitute list generally, a worker's name remains on the list unless the worker asks for it to be removed. In the past, Westby mailed out letters asking whether workers wanted to remain on the list. That practice has ceased, yet the employee understood that her name would remain on the 2004-2005 substitute list.

The Westby summer break was from June 1, 2004 (week 23) to September 1, 2004 (week 36). As of the hearing date, August 11, 2004 (week 33), the Westby District Administrator testified that the employee's name was on the Westby substitute list but that the 2004-2005 substitute list was not complete and applications were still being accepted. He conceded that the list was growing, decreasing the likelihood that the employee would be contacted for work.

The employee worked five days as a substitute teacher for the Kickapoo Area School District (Kickapoo) in the 2000-2001 academic year. She worked two days for Kickapoo in the 2001-2002 academic year and worked one day each year in the 2002-2003 and the 2003-2004 academic years. The Kickapoo Area School District did not appear at the hearing in this matter to establish the means and methods by which it contacts substitute teachers. It appears that the last day of school for the Kickapoo teachers was Friday, May 28, 2004 (week 22). Further, no evidence was presented regarding the anticipated demand for substitute teachers for the 2004-2005 academic year compared to the demand for the 2003-2004 academic year.

The employee first performed services as a substitute teacher for the Viroqua Area School District (Viroqua) in the 2000-2001 academic year. The employee worked every school day from September 7 to 26, 2000. Then, due to conflicts between the employee and the Viroqua Area School District, it removed her name from the substitute list and she did not perform any services for it in the 2001-2002 and 2002-2003 academic years. The employee filed four civil rights complaints against the Viroqua Area School District, three of which were resolved. For the 2003-2004 academic year, the employee's name was returned to the substitute list. She performed one day of substitute work for Viroqua in the 2003-2004 academic year.

With respect to Viroqua's substitute list generally, a worker's name remains on the list unless the teacher is not contacted or turns down work for two years. In May 2004, the employer mailed a letter to substitute teachers describing the upcoming events, with a meeting for substitutes to be held in August. The employee denied receiving the May letter and was not aware of the August meeting. The employee was not notified that her name would remain on the list for the 2004-2005 school year until the hearing in this matter, on August 11, 2004 (week 33). The last day of school for the 2003-2004 academic year was June 4, 2004 (week 23).

For the 2004-2005 academic year, the Viroqua district administrator testified that the number of teachers on the substitute list was similar to the number on the list for the 2003-2004 academic year, and that Viroqua anticipated a similar demand for substitute teachers. There is no set procedure for how names on the list are called.

The employee began performing services as a substitute teacher for the Richland School District (Richland) in February 2001. In the 2001-2002 academic year she worked 47.5 days. In the 2002-2003 academic year she worked 76.5 days. The employee worked nine days during the 2003-2004 academic year. Eight of those nine days, the employee was specifically requested as a substitute by a particular classroom teacher. That teacher retired as of the 2004-2005 academic year. The Richland summer break started on June 5, 2004 (week 23) and ended on August 31, 2004 (week 36).

With respect to Richland's substitute list generally, a worker's name remains on the list unless the worker asks that his/her name be removed. Substitutes are called on a rotating basis unless a specific substitute is requested by the teacher.

On June 22, 2004 (week 26), the Richland School District mailed the employee notice that her name would remain on the 2004-2005 substitute list. At the start of the 2003-2004 school year, the employee's name was one of 55 names on the substitute list. The Richland School District accepts names as additions to the list throughout the year and, as of March 2004, there were 90 names on the list, including the employee's name. Those same 90 names were on the list starting for the 2004-2005 school year. Although the Richland School District has decreased its teaching positions by one, the district administrator does not anticipate any change in the demand for substitute teachers when comparing the 2003-2004 academic year with the 2004-2005 academic year.

Issue

The issue before the commission is whether the employee is a school year employee who had reasonable assurance of performing similar work in the next academic year or term, within the meaning of Wis. Stat. § 108.04(17)(a).

The employee performed substitute teaching for all four educational institutions. Her services were not required on a year round basis. As such, she is a school year employee, within the meaning of Wis. Stat. § 108.02(22m).

For the four educational institutions involved, the period between the 2003-2004 and the 2004-2005 academic years started in the calendar week ending June 5, 2004 (week 23). Thus, the commission finds that week 23 of 2004 is the proper week of issue.

Reasonable assurance does not require a specific contract or guarantee of work; it may be established by custom. The legislature "has also determined that some degree of uncertainty is either necessary or acceptable, as long as it is reasonable." Ashleson v. LIRC, 216 Wis. 2d 23, 39 (Ct. App. 1997). Reasonable assurance is "assurance of employment sufficiently certain that a reasonable person in the same situation would rely upon such assurance in making decisions related to employment and income." Bruce A Brookman, et. al. v. Milwaukee Public Schools, UI Dec. Hearing No. 89602703MWG (LIRC, May 9, 1990).

In Leissring v. DILHR, 115 Wis. 2d 475 (1983), the Wisconsin Supreme Court held that the terms and conditions of the employment for the following year must be reasonably similar to those in the preceding year. The reasonably similar requirement applies to substitute teachers as well as well as full-time and part-time teachers. DILHR v. LIRC and Smithson, 155 Wis. 2d. 256 (Wis. Ct. App. 1990). "Such services" has also been interpreted as the services that initially qualified the employee for benefits, specifically, the base period services. See, Wanish v. LIRC, 163 Wis. 2d 901 (Ct. App. 1991).

Determining the employee's eligibility is complicated not only by the fact that she performed substitute teaching services but also because she performed those services for multiple districts. Wisconsin Stat. § 108.04(17)(a) does not only deny benefits if an educational institution provides reasonable assurance of such services but if any educational institution provides reasonable assurance of such services. To facilitate such reasonable assurance inquires, the Department's Advanced Adjudication Materials for School Year Employment, Fall 1996 (Revised April, 1997) uses a two step approach (2 ) to resolve multiple employment issues:

The Westby District Administrator contended that the employee had as much reasonable assurance for the 2004-2005 academic year as the other substitute teachers on the 2004-2005 substitute list. While the employee was aware that her name remained on the list, and she may have had the same opportunity to be called as the other workers on the 2004-2005 list, that is not the entire comparison for determining reasonable assurance. To establish reasonable assurance for only short term substitute teaching, the commission has held that it is an employer's burden to present evidence that the employee's opportunity to work in the upcoming school year would be similar to the opportunity the employee had in the prior academic year or term; such evidence includes the number of substitutes the employer anticipates needing, how many substitutes it had to select from, how substitutes are selected (seniority, teacher preference, subject matter), and the ratio of teachers to substitutes, as compared to the prior year. Schulte v. Franklin Public School, UI Dec. Hearing No. 99604704 (LIRC September 3, 1999). The Westby Area Schools failed to provide competent evidence that the employee's opportunity to be called in the 2004-2005 school year would be similar to the opportunity she had in the 2003-2005 school year. In fact, the district administrator testified that the list was growing, with the employee's opportunity to be called lessening. In conclusion, the employee does not have reasonable assurance with the Westby Area Schools.

The Kickapoo Area School District did not appear at the hearing and, thus, failed to offer any evidence of a substitute list or of the employee's opportunity to work for the 2004-2005 academic year. Thus, the record fails to establish reasonable assurance with the Kickapoo Area School District. See, Schulte.

The Viroqua Area School District contended that the employee had reasonable assurance of work in the 2004-2005 academic year similar to the work she had in the 2003-2004 academic year. To support its contention, the district administrator argued that the employee's name remained on the list and the method of contact was the same, namely, no set procedure. While this may be true, the employee was never informed that her name would actually remain on the list until the hearing on August 11, 2004 (week 33). The district administrator argued that even without any notice the employee should have known that her name was on the list due to past dealings with the Viroqua Area School District. The commission disagrees. In particular, although the employee frequently worked as a substitute at the start of the 2000-2001 academic year, the Viroqua Area School District removed her name from its substitute list for the 2001-2002 and 2002-2003 academic years. Consequently, she did not perform any services for Viroqua in those academic years. In Patterson v. Milwaukee Public Schools, UI Dec. Hearing No. 04606775MW (LIRC November 24, 2004), the commission refused to find reasonable assurance for a permit teacher, who had worked as a special education teacher in the prior school year, where while the employer knew its need for special education teachers outstripped their availability, no evidence was presented to establish that it imparted this information to the employee and there was no long-standing history of re-employment with the employer upon which to find that the employee "should have known." Similarly, given the conflicts between the employee and the Viroqua Area School District in the past years, the commission finds that there is also no pattern/history upon which to infer reasonable assurance as of week 23 of 2004. Yet, as of the hearing, week 33 of 2004, the Viroqua Area School District provided the employee with reasonable assurance.

The employee understood that her name would remain on the Richland substitute list from one school year to the next but disputed the Richland School District's claim that her opportunity to work in the 2004-2005 academic year would be similar to the opportunity she had in the 2003-2004 academic year. The commission agrees with the employee. In particular, the district administrator admitted that the number of names on the substitute list increases throughout the year. For the 2003-2004 academic year, the list started with 55 names and ended with 90 names, including the employee's. At the start of the 2004-2005 academic year, the list contained the same 90 names from the end of the 2003-2004 academic year. Clearly, the employee's opportunity to teach is decreasing. This inference is further supported by the negative change from her base period, the 2002-2003 school year, in which she taught 76.5 days for the employer, to the 2003-2004 school year, in which she only taught 9 days and the fact that the teacher, who specifically requested the employee as a substitute for 8 of the 9 days that the employee worked, has retired. As such, the employee does not have reasonable assurance with the Richland School District.

Before proceeding with the second step of the analysis, the chart below summarizes the facts and findings thus far.

Educational Institution	2002-2003 Academic Year	2003-2004 Academic Year	2004-2005 Academic Year
Westby	2.5 days Short Term Substitute Teaching	On Substitute List but No Work	No Reasonable Assurance
Kickapoo	1 day Short Term Substitute Teaching	1 day Short Term Substitute Teaching	No Reasonable Assurance
Viroqua	Not on Substitute List	1 day Short Term Substitute Teaching	No Reasonable Assurance until week 33 of 2004
Richland	76.5 days Short Term Substitute Teaching	9 days Short Term Substitute Teaching	No Reasonable Assurance

For weeks 23 through 32 of 2004, there is no reasonable assurance with any school. The second step is abbreviated and the employee lacks reasonable assurance with each of the four educational institutions, the Westby Area Schools, the Kickapoo Area School District, the Viroqua Area School District, and the Richland School District.

When the employee acquired reasonable assurance from the Viroqua Area School District, in week 33 of 2004, the second step became unnecessary for it. Yet, because there was no reasonable assurance individually with the Westby Area Schools, the Kickapoo Area School District and the Richland School District, the commission must decide whether the work that the employee had reasonable assurance of from the Viroqua Area School was similar to the work she had in the 2003-2004 school year.

In Jodie L. Fetzer v. West Bend Joint School Dist., UI Dec. Hearing No. 93605520WB (LIRC Feb. 17, 1994), the commission affirmed the importance of a "composite analysis" requiring comparison of the employee's total preceding school year employment with all of the assurance of work for the next year, using the following three factors:

The commission in Fetzer held that if the long-term teaching assignments constitute less than 20% of the employee's total employment in the preceding academic year, reasonable assurance exists when the employee's name is placed upon a substitute list. The 20% language mirrors Wis. Admin. Code § DWD 132.04 (2) which uses an 80% standard for "full-time educational employment." Yet, the commission declined to adopt a precise formula to decide reasonable assurance in substitute teaching situations, instead opting for a case by case analysis because

Fetzer and subsequent Department policy (3 ) takes a generalized approach to treating all short-term work as similar. Yet the inequities of such an approach are apparent in the employee's situation. At its core,

The employee's opportunity for work in the 2004-2005 academic year has decreased from the 2003-2004 academic year and her base period. The employee only has reasonable assurance of on-call substitute work with one of the four educational institutions that she performed services for in the 2003-2004 academic year. Additionally, the educational institution with which she had reasonable assurance provided her with less than 10% of the substitute work she performed in the 2003-2004 academic year. Under these circumstances, the commission finds that the on call substitute teaching work that the employee had reasonable assurance of with the Viroqua Area Schools for the 2004-2005 academic year, was not similar to the "such services," namely the on call substitute teaching with the Westby Area Schools, the Kickapoo Area School District, the Viroqua Area School District, and the Richland School District in the 2003-2004 academic year.

The commission therefore makes the following findings within the meaning of Wis. Stat. § 108.04(17)(a):

1. For the Westby Area Schools (Hearing No. 04003695LX), the employee performed services in an instructional, research, or principal administrative capacity during the 2003-2004 academic year, but that as of week 23 of 2004 the employee did not have reasonable assurance of performing such services in the 2004-2005 academic year.

2. For the Kickapoo Area School District (Hearing No. 04003696LX), the employee performed services in an instructional, research, or principal administrative capacity during the 2003-2004 academic year, but that as of week 23 of 2004 the employee did not have reasonable assurance of performing such services in the 2004-2005 academic year.

4. For the Richland School District (Hearing No. 04003698LX), the employee performed services in an instructional, research, or principal administrative capacity during the 2003-2004 academic year, but that as of week 23 of 2004 the employee did not have reasonable assurance of performing such services in the 2004-2005 academic year.

The decisions of the administrative law judge are modified to conform with the above, are amended as to week of issue and, as modified and amended, are reversed in part and affirmed in part. Accordingly, the employee is eligible for benefits as of week 23 of 2004, if otherwise qualified. (4 )

(1)( Back ) Only the Richland School District responded to the Commission's letter, generally stating that it assumed the consolidation did not alter the District's procedural or substantive rights and that, if the assumption was correct, the employer would not object to the consolidation. The Richland School District had the opportunity to present its evidence at the hearing before the administrative law judge and retains the same appeal rights post consolidation as it had prior to consolidation. Given the nature of the Richland response and without any specific objections, the commission consolidates these matters.

(2)( Back ) This approach is consistent with Jodie L. Fetzer v. West Bend Joint School Dist., UI Dec. Hearing No. 93605520WB (LIRC Feb. 17, 1994). See discussion page 8.

(4)( Back ) A companion commission decision for hearing number 04003694LX denies benefits to the employee as of week 27 of 2004 and until four weeks have elapsed since that week and the employee has earned wages in covered employment performed equaling at least four times her weekly benefit rate.